Fundamental Rights Section
spective requirements are fulfilled in the case at hand, violates the constitutionally granted
right of all citizens to stand equal before the law.
The Ombudsman Board recognised the respective complaints as justified since they had
been raised against official notifications which allowed for the limitation of the validity period
of and/or the suspension of driving licences without substantiated reasons, leaving it unclear on which medical disability the measures adopted were based. In the case VA
BD/377-V/05, set out in more detail on page 242, the Ombudsman Board managed to have
the limitation of the validity period of the driving licence at issue annulled. In the other two
cases, the official notification at issue could not be set aside, because the Ombudsman
Board discovered in the course of the investigative process that a constitutionally valid approach would not have led to another substantive decision of the authority issuing the driving licence.
2.6.2.3
Discrimination against married couples of mixed nationality by the
Foreign Nationals Law Package 2005?
(VA BD/96-I/03, BMI 70.011/645-III/4/06)
A Serbian national filed a complaint with the Ombudsman Board regarding the excessive
duration of proceedings for granting a permanent residence permit. As stated under point
6.1.3.1 of the part of the report dealing with the Austrian Ministry of the Interior, investigations have been conducted also into suspected cases of bogus marriage.
The legal position of so-called 'married couples of mixed nationality', whose problems have
been also addressed by the media, has become more difficult since the Foreign Nationals
Law Package 2005 entered into force.
This prompted the Austrian Ministry of the Interior to issue a communication to all heads of
the Offices of the Provincial Governments competent for the execution of the (Niederlassungs- und Aufenthaltsgesetz – NAG) Settlement and Residence Act. It stated that applications originally filed pursuant to the Fremdengesetz 1997 (Aliens Act 1997) in Austria, had
not become generally inadmissible by the NAG. The breach of the formal requirement to file
applications from abroad should therefore not lead to the inadmissibility of such applications and to a mere formal decision. In the case of substantive grounds for refusal, the Austrian Ministry of the Interior referred to the Right to respect for Private and Family Life pursuant to Art. 8 ECHR and the prohibition of arbitrariness introduced by the VfGH which is a
corollary of the principle of equality.
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